Falcon Cable Media LP v. Arkansas Public Service Commission

2012 Ark. 463, 425 S.W.3d 704, 2012 WL 6205608, 2012 Ark. LEXIS 501
CourtSupreme Court of Arkansas
DecidedDecember 13, 2012
DocketNo. 11-1168
StatusPublished
Cited by11 cases

This text of 2012 Ark. 463 (Falcon Cable Media LP v. Arkansas Public Service Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Falcon Cable Media LP v. Arkansas Public Service Commission, 2012 Ark. 463, 425 S.W.3d 704, 2012 WL 6205608, 2012 Ark. LEXIS 501 (Ark. 2012).

Opinion

COURTNEY HUDSON GOODSON, Justice.

| jThis case concerns the assessment of ad valorem taxes on the real and personal properties of appellants Falcon Cable Media LP, Falcon Telecable LP, and Interlink Communications Partners LLC, d/b/a Charter Communications (collectively “Charter”) made by the Tax Division of appellee Arkansas Public Service Commission (“Commission”). Charter appeals the decision of the Pulaski County Circuit Court affirming the Commission’s order upholding the Tax Division’s assessments for the years 2006 through 2009. For reversal, Charter contends that the assessments are erroneous because they include the valuation of intangible personal property, which it claims is exempt from taxation. It also argues that an assessment of intangible property marks an illegal change in policy because the Tax Division failed to promulgate rules that would provide notice of the change to taxpayers. ^Before the court is also a motion to strike filed by the Commission that we passed to consider with the submission of the case. Jurisdiction of this appeal properly lies with this court pursuant to Supreme Court Rule 1 — 2(b)(4) & (6), as the case involves an issue of substantial public interest concerning the interpretation of an act of the General Assembly. See Ark. Elec. Coop. Corp. v. Ark. Pub. Serv. Comm’n, 307 Ark. 171, 818 S.W.2d 935 (1991). We deny the motion to strike and affirm the Commission’s decision.

Factual Background

Charter is engaged in the business of providing cable-television services to subscribers in various counties in Arkansas. In that pursuit, Charter owns real and personal property within the state for use in the ordinary course of its business. It also has entered into franchise agreements with municipalities for the provision of cable-television services to its subscribers. In a consolidated petition for review, Charter challenged the Tax Division’s ad valo-rem assessments of its properties for the tax years 2006 through 2009. In its petition, it alleged that, prior to 2005, the Tax Division had not included the value of intangible personal property, such as franchise agreements, customer relationships, and good will in the ad valorem tax base of cable-television companies. Further, Charter asserted that, beginning in 2005, the Tax Division included in its ad valorem tax assessment the value of its intangible property, resulting in significantly higher assessments and correspondingly increased tax bills. As its challenge, Charter argued that the Tax Division lacked statutory authority to assess the lain tangible personal property of cable-television companies in Arkansas.1 In its answer to the petition, the Tax Division did not directly respond to the allegation that a sea-change had occurred in 2005. Instead, it asserted that, prior to 2005, Charter had refused to complete the forms and to supply financial information requested by the Tax Division.

By designation order, the Commission appointed a presiding officer to conduct the proceedings. The presiding officer entered a scheduling order in which he noted that, although it was customary for parties to pre-file prepared testimony and exhibits with regard to valuation issues, briefing would suffice on the issue involving the assessment of intangible personal property because the question raised was essentially one of law. In its brief, Charter argued that the provisions in the code pertaining to the Tax Division’s authority to assess the property of cable-television companies are found exclusively in Subchapter 18 of Chapter 26 of Title 26 to the Arkansas Code, namely Arkansas Code Annotated sections 26-26-1801 to -1803 (Repl.2012), whereas the provisions relevant to other businesses assessed by the Tax Division are found in Subchapter 16 of Chapter 26 of Title 26, found at Arkansas Code Annotated sections 26-26-1601 to -1616 (Repl. 2012). It asserted that, because cable-television companies are not among the entities listed in section 26-26-1601, its property was not subject to assessment under the provisions of Subchapter 16. Charter thus argued that section 26-26-1606(b), requiring the Tax Division to “ascertain the value of all property, 14tangible and intangible, including good will, easements, and franchises,” does not apply to cable-television companies. Charter maintained that, because the provisions of Sub-chapter 18 do not provide for the assessment of intangible personal property, the intangible personal property of cable-television companies was exempt from taxation pursuant to Arkansas Code Annotated section 26-3-302 (Repl.2012).2

In response, the Tax Division asserted that the argument raised by Charter that section 26-26-1606(b) does not apply to cable-television companies was rejected by the Commission in In re Comcast Cable Corporation of Little Rock, Inc., Docket No. 06-097-TD (Order No. 13), and that the presiding officer was bound by that decision, which was not appealed.3 In addition, it argued that Arkansas Code Annotated section 26-24-103 (Repl.2012) gave it assessment authority over cable companies as well as other entities and that the provisions found in Subchapter 16 provided the mechanics of how companies listed in section 26-24-103' are assessed. The Tax Division also asserted that, although the codified version of section 26-26-1606(b) appears to limit its application to “this subchapter,” the language of the original act passed by the General Assembly used the word “act” and not “subchap-ter.” The Tax Division argued that the substitution of the word “subchapter” for “act” was a codification error and that, when the statute is read using the word “act,” it is clear that section 26-26-1606(b) and its requirement of assessing intangible personal property applies to all companies it is obligated to assess. The Tax Division further argued that Charter’s contention that its intangible personal property was exempt from taxation pursuant to section 26-3-302 was contrary to the decision in Ozark Gas Pipeline Corp. v. Arkansas Public Service Commission, 342 Ark. 591, 29 S.W.3d 730 (2000).

The presiding officer determined that he was bound by Order No. 13 previously issued in the Comcast case where the Commission had ruled that the value of intangible personal property is properly included in the ad valorem tax assessment of a cable-television company. He also ruled that Charter’s argument that its intangible personal property was exempt from taxation was precluded -by the decision in Ozark Gas, supra. The Commission approved the presiding officer’s order without modification, and Charter appealed to the Pulaski County Circuit Court. The circuit court found no error in the Commission’s order and affirmed it in all respects. This appeal followed.

Motion to Strike

Prior to submission, the Commission filed a motion to strike, taking issue with a request made by Charter in its reply brief that we take judicial notice of Order No. 13 in the Comcast proceeding. In that order, the Commission stated,

Prior to the 2005 tax year, cable television companies were not required to report the value of intangible personal property, such as, franchises, licenses, and good will, to the Tax Division, and it was not assessed.

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2012 Ark. 463, 425 S.W.3d 704, 2012 WL 6205608, 2012 Ark. LEXIS 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falcon-cable-media-lp-v-arkansas-public-service-commission-ark-2012.